Wednesday, July 02, 2003

I’m baffled by the opposition of some libertarians, most notably Radley Balko, to the national Don’t Call Registry.

Libertarianism does not mean opposition to any and all forms of government regulation. It means opposition to regulations that do not serve a relatively narrow set of goals, usually defined to include the protection of property rights. As Julian correctly observes, the Don’t Call Registry is the telecom equivalent of a “no trespassing” or “no soliciting” sign on your front lawn. Notice that the law in question does not issue a blanket prohibition of all phone solicitation, only solicitation of people who have specifically asked not to be solicited. The “no soliciting” sign analogy could not be more apropos.

But Radley takes a federalist position, arguing that even if such regulations are justified, they are not within the proper purview of the federal government. Again, Julian anticipates me, by noting that the much-abused Commerce Clause seems to apply pretty directly here: “The Congress shall have the power … to regulate commerce … among the several states.” It is true, as Radley indicates, that the Commerce Clause has been grossly abused. But the primary abuse has been justified by allowing federal regulation not just of the commerce itself, but of anything that might by any stretch of the imagination or tenuous chain of causality even *affect* interstate commerce. (This allowed the federal government to desegregate Ollie’s barbecue, a restaurant in Alabama, on the risible grounds that Ollie’s purchased ketchup and other food products from out of state.)

Radley would limit the Commerce Clause to an “original intent” notion, under which the clause could only be used to facilitate rather than impede commerce. I’m not convinced that was the only intent of the founders, but I won’t try to get in their heads. Instead, I’ll rely on the plain meaning of the text buttressed by the following point: Radley’s interpretation would mean that some forms of property rights could not be enforced by *any* level of government except by the mutual agreement of the states. For instance, no form of trespass that crossed state lines – such as the dumping of garbage into a waterway that deposits the refuse on the property of owners in another state – could be prosecuted, unless the state in which the polluters lived agreed to allow such prosecution. (And maybe not even then, since an agreement between states to “restrain commerce” might also run afoul of Radley’s interpretation.)

Now apply this to the case of telemarketers. While some states (like California) have implemented state-level do-not-call lists, they cannot enforce those lists on other states. The same problem, incidentally, applies to self-enforcement through the use of caller-ID: most of the telemarketers who call me do so from outside the identification area, typically from another state. And as one commenter astutely observed in Radley’s comments box, if one state – say, Mississippi – decided to position itself as the “Telemarketer State,” there’s not much the rest of us could do. This is unquestionably a matter of interstate commerce, well within the language of the Commerce Clause.

Some opponents of the registry (read the comments sections on Radley’s and Julian’s posts) seem to think the correct libertarian response to telemarketers is to rely on class-action lawsuits. But why? It’s true that common law is often a superior institution to legislation, but not always, and there is nothing in the libertarian credo that says property rights can only be enforced one way. Some entitlements are enforced via property rules – that is, direct prohibitions of any violation. Examples include the laws against murder, rape, and auto theft. Other entitlements are enforced via liability rules – that is, forced compensation of the owners for damage caused by the violators. Examples include medical malpractice and auto collisions. I don’t think either enforcement mechanism is inherently better or more libertarian than the other; which is better depends on the type of violation we’re talking about. But if I were forced to choose which enforcement approach was more libertarian, I would have to go with property rules, because such rules don’t put someone other than the property owner (bureaucrats or judges or juries) in the position of deciding the dollar value of the entitlement after the fact. Instead, property rules give entitlement owners the ability to prevent any unapproved entry, and thus to set their own prices for allowing invasions. And notably, the Do-Not-Call registry creates a property rule instead of a liability rule.

There might be some good economic reasons for thinking a liability rule would be the preferred (i.e., more efficient) regime in the case of telemarketers, but none of the libertarian opponents of the law have (to my knowledge) made such an argument yet. As an opening salvo, I’d point out that class-action lawsuits are incredibly slow, expensive, and burdensome on the courts. Still, I’m open to considering the possibility that the Do-Not-Call Registry is not the very best solution to the telemarketer problem. But if your position is that the registry is somehow anti-freedom and un-libertarian at its core, I’m just not buying.